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Digging the Value of Source

by
tedt
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Published on
Mar 24, 2005 10:31 AM

An example of why we need to know the reach of our intellectual interests.

By Ted Teah

Recently, the "Big Dig" construction project here in Boston ran into
some big trouble over software. It seems that the Massachusetts
Turnpike Authority (MTA) the agency in charge of the Big Dig, failed to
stipulate all their rights to the Integrated Project Control System
(IPCS) program of Transdyn Inc. It is clear that they had the right to
execute the program, but when it came time to hand the project off to
the next lowest bidder, there was no source code to be found.

At the end of the “early-build” contract, the final development of IPCS was to
be done by the winning bidder of the “full-build” contract. Honeywell,
a bidder on the “early-build” contract, was the lowest bidder on the
“full-build” contract. Transdyn argued that the software in question
was off-the-shelf so they did not need to provide the source, while the
MTA contended that the numerous changes to tailor the software to the
circumstances make it a custom work, which would entitle the state to
the source code.

After an out-of-court settlement by the State, in the amount of
$350,000, Honeywell, was able to use Transdyn's work. The total cost of
this incident, according to the state auditor, exceeds $10 million.
This causes a smirk to flit across the faces of all those who have ever
looked over their employment contracts and seen words to the effect of,
"anything you say, see, think, or do which is in anyway related to our
current business and or planned business is OURS!" Agreed, there are
differences between contractors and employees which affect the legal
analysis of the situation. But you would have thought that by 1994 even
the government would have realized that you don't truly have the
program until you have the source. Too bad they didn't talk to the
Government Open Code Collaborative, to which Massachusetts belongs.

If nothing else this serves as a poignant example of the importance of
securing an employer disclaimer. That is, if you want the peace of mind
that your piece of mind is yours, get a disclaimer.